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 Scott Kernan is substituted as respondent pursuant to Rule 2(a) of

the Rules Governing Section 2254 Proceedings and Rule 25(d) of the Federal

Rules of Civil Procedure.

United States District Court

Eastern District of California

Mark A. DuRoss,

Petitioner, No. Civ. S 04-0638 DFL PAN P 

vs. Findings and Recommendations

Scott M. Kernan, Warden,

Respondent.

-oOoPetitioner, a prisoner without counsel, seeks a writ of

habeas corpus. See 28 U.S.C. § 2254. Respondent1 moves to

dismiss upon the ground the petition is untimely. Petitioner

opposes.

Petitioner was convicted September 24, 1999. December 27,

2000, the appellate court remanded for the trial court to reduce

one felony count to a misdemeanor and to re-sentence petitioner

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accordingly but otherwise affirmed.

Petitioner was re-sentenced January 18, 2001.

Petitioner filed a petition for review in the California

Supreme Court February 1, 2001. That court denied review March

14, 2001.

Petitioner filed a habeas petition in the trial court June

18, 2001. That court denied relief July 24, 2001, upon the

ground petitioner failed to state a prima facie case.

Petitioner filed a habeas petition in the trial court August

29, 2001, and the court denied relief October 26, 2001, upon the

ground the petition was second or successive and petitioner

failed to state a prima facie case for relief. 

December 18, 2001, petitioner filed a third habeas petition

in the trial court. December 21, 2001, petitioner requested the

court “omit” the December 18, 2001 petition. January 4, 2002,

the court construed petitioner’s request as one for voluntary

dismissal and dismissed the petition.

June 30, 2003, petitioner filed a fourth petition for a writ

of habeas corpus, which the trial court denied July 24, 2003,

upon the ground the petition was a “gross abuse of the writ

process.” The court advised petitioner to seek relief in the

appellate court. 

Petitioner moved for reconsideration September 4, 2003. The

court denied the motion September 17, 2003.

Petitioner filed in the trial court fifth and sixth

petitions for a writ of habeas corpus December 30, 2003. The 

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court denied both January 23, 2004, upon the grounds they were

incomprehensible, barred under In re Clark, 21 Cal.Rptr.2d 509,

541 (Cal. 1993), failed to state a prima facie case and were a

“gross abuse of the writ process.” The court advised petitioner

to seek relief in the appellate court. February 4, 2004,

petitioner moved for reconsideration. 

March 9, 2004, petitioner filed a petition for a writ of

habeas corpus in the appellate court. That court denied relief

March 11, 2004.

March 30, 2004, petitioner filed his federal petition.

April 8, 2004, petitioner filed another petition for a writ

of habeas corpus in the trial court. The court denied relief May

18, 2004. May 23, 2004, petitioner sought reconsideration, which

the court denied June 11, 2004.

September 13, 2004, petitioner filed another petition for a

writ of habeas corpus in the trial court. The court denied

relief October 14, 2004.

The trial court denied reconsideration of the fifth and

sixth habeas petitions June 11, 2004. 

A one-year limitation period for seeking federal habeas

relief begins to run from the latest of the date the judgment

became final on direct review, the date on which a state-created

impediment to filing is removed, the date the United States

Supreme Court makes a new rule retroactively applicable to cases

on collateral review or the date on which the factual predicate 

of a claim could have been discovered through the exercise of due

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diligence. 28 U.S.C. § 2244(d)(1). Petitioner’s conviction was

final June 12, 2001. See Bowen v. Roe, 188 F.3d 1157 (9th Cir.

1999) (judgment on direct review becomes final when the 90-day

limit for filing a petition for certiorari expires). The

limitation period is tolled while a properly filed state post

conviction application is pending. 28 U.S.C. § 2244(d)(2). 

Petitioner had until June 12, 2002, to file in federal court

and so unless he is entitled to tolling, his March 30, 2004,

federal petition is late.

For purposes of tolling, a California petitioner’s

application is “pending” during the time between the decision of

a lower court and the filing of a new petition in a higher court

so long as petitioner properly is attempting to exhaust state

remedies. Carey v. Saffold, 536 U.S. 214, 223 (2002); Gaston v.

Palmer, 387 F.3d 1004, 1016 (9th Cir. 2004) (when a California

petitioner pursues relief “as he would in a typical appeal state

- i.e., bringing the same claims to the court of first instance,

then appealing the denial (or otherwise seeking review) in an

expeditious fashion - he will be entitled to interval tolling.”).

While a petitioner ordinarily will benefit from interval tolling

when a court reaches the merits of his habeas application, he

will not if his abuse of state court procedures undermines the

very purpose of interval tolling, viz., to afford applicants “one

full round” of state review to satisfy the federal exhaustion

requirement. Gatson, 387 F.3d at 1016; Chavis v. LaMarque, 382

F.3d 921, 925 (9th Cir. 2004).

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The trial court reached the merits of petitioner’s first and

second petitions filed June 18, 2001, and August 29, 2001, which

contained different claims and were filed in quick succession,

and permitted petitioner voluntarily to dismiss the December 18,

2001, petition, which contained two claims made in the first

petition and one made in the second petition. The state court

did not find these petitions to be abusive and the delay between

them was not undue. 

Giving petitioner the benefit of construing his first three

petitions as “properly filed,” a dubious proposition, the

limitation period was tolled for 200 days, from June 18, 2001,

when petitioner filed his first petition in the trial court until

January 4, 2002, when the court permitted voluntary dismissal of

the third petition. That left petitioner until December 29,

2002, to file a federal petition.

Petitioner’s subsequent state habeas petitions provide no

basis for tolling under 28 U.S.C. § 2244(d)(2) because they were

filed after the limitation period expired. See Fergusun v.

Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (section 2244(d)

does not permit re-initiation of the limitation period when it

expires before a timely state petition for post-conviction relief

was filed).

Petitioner’s March 30, 2004, federal petition is untimely. 

Accordingly, respondent’s December 10, 2004, motion to

dismiss should be granted and this action should be dismissed as

untimely.

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Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Within 20 days after being

served with these findings and recommendations, petitioner may

file written objections. The document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” 

The district judge may accept, reject, or modify these findings

and recommendations in whole or in part.

Dated: June 7, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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